Cheetham v Baker No. DCCIV-96-1511 Judgment No. D127
[1999] SADC 127
•7 October 1999
CHEETHAM V BAKER
[1999] SADC D127
His Honour Judge Lowrie
Civil
This is an appeal against the decision of the Master made in this matter and delivered on 23rd August 1999 when the Master considered the defendants’ application dated 28th January 1999 seeking that:-
1. That the matter be dismissed.
2. That costs be awarded to the defendant.
3.If this case proceeds I ask that security of costs, a sum of $10,000 be paid by the plaintiff into this court.
The application was supported by an affidavit filed by the defendant on 23rd January 1999.
Mr Randle of counsel appeared for the plaintiff and the defendant appeared in person. Mr Randle has now ceased to act for the plaintiff.
The Master reviewed the rather unfortunate history of this action. The alleged incident which gave rise to the plaintiff’s claim, was alleged to have occurred on 9th December 1993 and he issued a summons and a statement of claim on 18th December 1996. I have read the statement of claim. It was a very lengthy hand written document with numerous deletions and amendments, and one could say it was in draft form. In any event, Master Kelly on 9th May 1997 struck out the plaintiff’s statement of claim and entered judgment for the defendant. The plaintiff appealed. The appeal was heard by His Honour Judge Brebner on 17th December 1997. He varied the order of Master Kelly and ordered that the plaintiff’s statement of claim be struck out, but gave the plaintiff liberty to file a new statement of claim complying with the relevant rules within 28 days. The plaintiff has made much of that order of the learned judge as though it dealt with the merits of his claim in his favour. I endeavoured to explain to the plaintiff that that was not in fact the position. An amended statement of claim was filed on 17th February 1998.
The statement of claim alleges that the defendant on 9th December 1993 wrongfully trespassed on the plaintiff’s land and removed childrens’ bed clothing and because of that act, he has suffered considerable damage and health disorders.
The defendant is a sister of the former wife of the plaintiff. There appears to have been a long-running dispute between the plaintiff and his wife Beverley Cheetham in the Federal Court.
A defence was filed by the defendant. That defence admitted that the plaintiff was the owner of the land in question, together with her sister and denied the relevant allegations of trespass, or indeed entering the premises in provocative circumstances, and further pleaded that the defendant was there, in an appropriate manner and with the permission of the joint owner, namely her sister.
The plaintiff subsequently filed a document called “Response to the Defendant Defence” which has many attachments. The document is difficult to follow. It is not a proper pleading and has many of the hallmarks of the plaintiff’s initial statement of claim.
The learned Master in his decision considered the application to dismiss the claim and rightfully considered all relevant authorities. The Master commented on what the nature of the plaintiff’s alleged nervous shock claim arising from the trespass, and on the voluminous material on the file in support of such a claim. The defendant’s affidavit alleged that the claim should be dismissed “on the grounds that Mr Cheetham has not produced any substantial evidence to support his claim”. The Master reminded himself of the relevant principles, and these appear in the judgment of Judge Brebner that for a claim to be struck out, the claim must be “obviously unsustainable”. He commented that the circumstances surrounding the claim were unusual, but he could not find that it was vexatious or an abuse of process and he was not in a position to dismiss the claim.
The Master then went on to consider the application for security of costs. Master Berry accurately, I believe, summarised the applicant’s allegations concerning the plaintiff and his finances. After considering the circumstances where costs can be ordered under Rule 100.01 he then went on to give detailed consideration to all of the relevant authorities concerning such an application. Indeed a discretion exists when considering such an order. He particularly gave such consideration to the most recent comments of Mr Justice Olsson in Ocatane Pty Ltd v PYT SRJ Property Development Pty Ltd and National Bank Ltd (1999) SASR 231, as well as the subsequent decision of Lander J in Jownal v Commonwealth Bank of Australia (1999) Judgment No. SASC 72. The Master set out that it was his view that the plaintiff “does not have a strong case against the defendant, there is a real possibility in my opinion his claim will be dismissed following a trial if the action proceeds that far.”
The Master sets out other reasons for arriving at that decision as well as the merits of the relevant relief as sought. He then considered it appropriate to direct that the plaintiff provide security for the defendant in the sum of $10,000.
The plaintiff appealed against that order and filed a very lengthy document in which there were some 28 or 29 areas where he viewed that the Master had erred. The plaintiff addressed me at length on each head of his appeal application.
The application and argument, at times, was most difficult to follow. Clearly many matters are not relevant. Many purported factual matters were stated as having finality by the plaintiff which are clearly in dispute. The plaintiff also considered at length the various decisions and dicta of the various judgments referred to in support of his application.
The defendant addressed me briefly naturally supporting the reasons of the Master.
Since adjourning the matter I have endeavoured again to read the transcript of the defendant’s appeal. The transcript indeed was at times difficult to follow. It must be borne in mind that the plaintiff has sought to bring his claim in this Court for his damages arising from the alleged trespass of the defendant and the following alleged nervous shock. The plaintiff has chosen this Court rather than the Magistrates’ Court. Consequently the jurisdiction that he seeks to invoke is the substantive jurisdiction and for the merits of such a detailed claim to be considered, pleadings must be in proper form. There was little doubt that the initial statement of claim would always be struck out. I note at this time that this matter is still in the interlocutory stages. Clearly, there may well be many other applications in regard to the plaintiff’s statement of claim and further and better particulars will have to be sought. Indeed action should be taken concerning the document entitled “Response to Defendant Defence”. The defendant is in a position where it is imperative to obtain legal advice in such a allegedly substantial and involved and complex matter.
However, I am obliged to concern myself with the manner in which the Master has dealt with the principles. I find as follows:
1...... I accept the Master’s comments concerning the merits of this claim. I have re-read the statement of claim. I have grave reservations of the basis of this claim and view the same as having little merit. However, the Master correctly refused to strike out the statement of claim.
2...... Security for costs. I believe the Master, in the circumstances of this case, has appropriately considered all of the relevant principles relating to security of the costs and correctly applied those decisions in dealing with the factual matters of this case and I share his view of the merits of the claim which is further support for this application.
In my opinion the Magistrate has not erred and I am not prepared to vary such orders. The appeal is dismissed.
The costs of this application shall be the defendant’s in any event.
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